To the National People’s Congress Standing Committee Legal System Working Group:

I am the Chinese citizen Hu Jia, ID card number 110105197307254115. I was imprisoned for three years and six months for the crime of incitement to overthrow state power and was released from prison on June 26, 2011. My sentence is not yet complete since I am still deprived of political rights. However, as a citizen who is serving a sentence, I still have the right to make suggestions on legislation and the revision of laws.

As a citizen who has gone through the complete judicial process, I fully realize that the criminal law and the code of criminal procedure are closely connected to our rights. In 2008 at my preliminary hearing, the police officials at the hearing gave me a copy of the “Criminal Law” so that I would understand the crime I was charged with and my possible sentence. However, they refused to give me the “Code of Criminal Procedure”. My lawyer, while giving me legal assistance, provided the articles protecting the rights of people who are in custody or who have been indicted. However, the departments responsible for my preliminary hearing refused to pass it along to me so that I could read it. During the preliminary hearing stage this puzzled me. I assumed that the criminal law must have something that benefits me and constrains the interrogating departments. Not until I was in prison serving my sentence did I finally get from my family the original text of the criminal law. I understand now that the authorities did not want me to understand my rights under the code of criminal procedure.

Therefore, I believe that first, the code of criminal procedure is often not followed by the security and prosecutorial organs in their handling of cases. We are not aware of our rights and they are not protected. Second, the constraints that the criminal law places on the security and prosecutorial organs are very weak. This is very detrimental to the protection of the rights of criminal suspects. Therefore, the revision of the criminal law is urgent.

The rule of law means good laws and good governance, not cruel laws and evil governance. Abuse of power by the administrators of justice is China today is an even worse social plague than corruption. The police organs have become KGB-like and the political police responsible for “protecting domestic security” have extralegal privileges. However, since when they make people disappear or detain them illegally they clearly cannot point to any provision of the law to justify themselves, citizens can still hope that their rights will be vindicated.

With the strengthening of the system that enables citizens to raise questions about the legality of official acts and the advance of the rule of law, the political police departments have had some misgivings about their illegal law enforcement actions. However, this revision of the code of criminal procedure and the addition of truly KGB-like provisions — that is articles 30, 36 and 39 — will legalize illegal violations of citizen rights. These changes will give the actual evil methods greater power than before and cause endless problems since they will be supported by evil provisions in the code of criminal procedure. Here I will present my personal views on the revision of these articles and the reasons behind them.

Article 105, Section 2 of the PRC Criminal law “incitement to overthrow state power” is often used to take revenge on citizens who criticize the government and the ruling political party. This article violates the provision in the PRC Constitution on freedom of speech and is an evil law that is used to accuse people unjustly and create conflict in society. Moreover, this speech crime falls under the category “crime of injuring national security”. For a long time, the “crime of inciting the overthrow of state power” has been widely questioned both within China and abroad. The government and the ruling party have on many occasions because of this have suffered a serious loss of face. The current proposed revision to the code of criminal procedure will combine all national security offenses into one “harming the national interests” category that will sweep up both the innocent and the guilty and will make the already serious abuses even worse.

Article 30: “Notification of residential surveillance, except in cases where serving notice is not possible or in cases where the crime of harming national security or terrorist activities is suspected, or where serving notice would hinder the investigation, should be given to the family members of the person who is under residential surveillance within 24 hours of the beginning of surveillance.”

Article 36: “A detained person should be sent to a detention center immediately upon detention and in no case more than 24 hours after detention. Except for cases in which notification is not possible or in which there is suspicion of the crime of harming national security, terrorist activities or other serious offenses, or in which notification might hinder the investigation, the reason for the detention and the address of the detention center should be given to the detained person’s family within 24 hours.”

Article 39: “Upon arrest, the arrested person should be sent to a detention center immediately. Except for cases in which notification is not possible or in which there is suspicion of the crime of harming national security, terrorist activities or other serious offenses, or in which notification might hinder the investigation, the reason for the arrest and the address of the detention center should be given to the arrested person’s family within 24 hours.”

The request for comments on the draft of these three articles all include “suspicion of a crime against national security” as on of the specified conditions. People who are in the situation of “living but can’t have visitors, die and your body will never be seen” are terrorized. This situation tortures their parents and families as well. This provision lacks basic human decency in its treatment of suspects who have not been convicted and to their innocent families.

Between February 16, 2006 and March 28, 2006, I was illegally detained by the Domestic Security Protection Bureau (Guonei anquan baoweiju) of the Ministry of Public Security and by the Beijing Municipality Public Security Bureau Domestic Security Protection Detachment (guobao) in the villages of Taihu and Liyuan in the Tongzhou District of Beijing. There was no criminal case against me at the time. This was purely a illegal rights violation intended as a measure to ensure stability.

My mother and wife every day visited public security and prosecutorial offices in the Beijing area but were unable to determine where I was being held. My mother during the 41 days I was disappeared lost over ten kilograms and often cried, fearing that I had been murdered. The political police from start to finish never notified my family. Therefore my family, not only worried that I had been illegally detained but also could not exclude the possibility that I had been kidnapped, become seriously ill or had died in a car accident.

I was not the only one to suffer from these KGB secret police style red terror tactics. They have been used against many rights protection lawyer, dissidents, artists, petitioners and the families of political prisoners. Examples include Gao Zhosheng, Ai Weiwei, Teng Biao, Jiang Tianyong, Liu Xia, and Ceng Jinyan. These methods are used all around the country as we seen in the case of Chen Guangcheng in Linyi City, Shandong Province and Yao Lifa of Qianjiang City, Hubei Province. The government and legal organs all use secret detention and wanton cruelty — and then flatly deny it ever happened. Moreover they put pressure on the people involved and their families to keep quiet and not tell the outside world about violations of the law. If these three provisions to the code of criminal procedure are passed, it will only encourage these abuses and those abusing legal authority will feel secure that they have strong backing. China will have a setback on its progress towards the rule of law. The poisoned fruit of legalizing violations of rights will be the anger of the public and ever more serious confrontations between the people and the Party and between the people and public officials. Social upheavals will become more serious. Therefore I suggest deleting these three articles with the proviso that families must be notified within 24 hours in all cases.

In addition to this letter, I have also uploaded the opinions above to the “National People’s Congress Draft Law Request for Opinions System” where it is #66730. I hope that the National People’s Congress will broadly solicit public opinion, enact good laws and seek to improve governance.

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About 高大伟 David Cowhig

Worked 25 years as a US State Department Foreign Service Officer including ten years at US Embassy Beijing and US Consulate General Chengdu and four years as a China Analyst in the Bureau of Intelligence and Research. Before State I translated Japanese and Chinese scientific and technical books and articles into English freelance for six years. Before that I taught English at Tunghai University in Taiwan for three years. And before that I worked two summers on Norwegian farms, milking cows and feeding chickens.